thomas filed a in that 1992 case white vs. illinois. i only bring this up because i think when we think about the courts, and this goes back to the stuff we were talking about at the beginning and transparency, but to still do not really know, you do not know what is happening behind those closed doors. i always think it is fascinating to see cases where justice thomas has really had -- we see the powerful dissent, but in cases where he has had an influence on shaping laws that we do not necessarily normally about. i think this is one. he has made quite a mark on the supreme court threw his dissents, being but very powerful and different. he is often alone. he was in the voting rights case and in the district search case. there are areas of the law where he has shaped it quite

significantly. . next topic. time does run. we would love to say more. john, could you take us into the case procedure? >> i would like to talk about the ikbal case, which is a case about civil procedure. i would like to make the case that this is programs the most important case of the term practsly and gives us the strongest window into the roberts court and the warren case. it comes out of the terrorism context, and though it isn't decided in that context, he was someone who was picked up after 9/11 9/11 and complained that he was treated in an improper way because he was a muslim. it was essentially a discrimination case, and the

court resolves and the court resolves the case looking at the rules of meaning. it rejects the claim in a 5-4 decision because the argument is that civil procedure requires that a playoff have a short and plain statement showing he is entitled to relieve. justice kennedy in his majority opinion says there is really nothing in the complaint that shows he is entitled to relieve. there is just a conclusion statement that he is scrimnailted against because he is a muslim. justice kennedy notes that of course after 9/11 it is not at all surprising, given the events of 9/11, that muslims might have been disproportion naturely impacted. ateli

impacted. they are looking for law enforcement techniques at people who might be more likely connected to the events of 9/11. and so i think the way to understand the rule in this case, and i think it is quite a dramatic rule, is that in meaning you have to do what one of my colleagues suggests, show that you have some reasonable suspicion, there is some sense even at the pleading stage that the infernoses did not is fernandez -- infernos is that there is some fact that. practically this case follows on a case two years ago in which the court in an anti-trust context made much the same arguments in knocking out a case at the meaning stage

because the anti-trust allegation simply did not have enough factual allegation to suggest anything wrong that was going on here. what this case shows is that it is not limited to anti-trust. it is what a civil procedure scholar would call trans-substantive. this is a requirement now that you show this reasonable suspicion even at the meaning stage. why this is practically important, it has been cited almost 7,000 times in the two years since it has been decided. that gives you some sense of the enormous significance. of course all cases can be addressed at the meaning stage. this was enornous practical importance, at what has worked out to be the plausibility of meaning in scrort. secondly, this gives us a

powerful window into changes into how we regard justice in the united states. some of the liberal meaning cases come from the warren court. what does meaning really focus on? it really tries to get a balance, a balance between two kinds of considerations. on the one hand, you want to be able to have people come into court and make their case even if they don't have possession of all the facts. on the other hand, if they can come into court without showing any plausible suspicion that something is wrong here, they can have the advantage of a huge amount of discovery and impose all sorts of costs. and so it depends on what we are going to wait for more strongly about how liberal our meaning les are going to be. and i think what those two cases suggest is that the roberts court has a very

different balance, that there is a greater concern about the cost of discovery. you might actually suggest that what is actually destroying liberal meaning is liberal discovery because liberal discovery imposes all of these costs. now i should say that the first one was a 7-2 decision. this was a hotly contested 5-4 decision with justice souter, the author, in accident here. that shows one of the possible approximate going forward of this new plausibility standard or reasonable suspicion standard for pleading, that is may be very much in the eye of the beholder and people may divide ideologyly. this is part of the downside of this rule even though it has some potential of constraining costs. speak supreme court level, one can see this as very much connected to another theme of the roberts court.

what another one -- would have called the passive virtues. avoiding constitutional issues by getting rid of the case before deciding constitutional issues. i think we see that right across the board this term. we have already discussed the voting rights case where they interpret a statute, in perhaps not a completely textump al manner. justice alito decides no longer is the court going to be required to decide the constitution a lot of an action before it against to the other issues. it allows the other courts to decide whether someone has qualified immunity without actually taking a position on the law itself. and finally, another area, and

i think this will segue into our discussion of environmental law, is standing in which the court again in this term kicks something out on the grounds of standing. all these are ways that the court mansion to avoid taking strong positions on constitutionality. i think that is very much in keeping with the attitude that we saw from justice roberts, and i think that may be in some sense his most passionate interest. justice roberts, although he doesn't cite many law reviews, he actually did write one law review article, and it was all about standing, and by implication, the way the court can actually act to advance justice actually sometimes by not actually making a decision on the merits. and so i think this case has multiple meaning, and in some

ways in my view, although it is a civil procedure case, a pleengs case may be the most important case of the term. >> linda, you had a comment? >> yes. just to emphasize the vigor of justice souter's accidenting opinion. he says i wrote the other one, and this isn't what i meant. there were two theories of the defendant's act in the sherman act case. in one theory it was completely innocent and another theory it was cluesive. ep when there are two -- he said when there are two plausible theories, one of which is completely innocent behavior, you have to show more than that in order to get discovery. the court really changed the game, the majority changed the game in that case in going beyond that

i think it is just interesting that there was no common ground at all between the majority and accident in that case. dissent. they reversed a very modest opinion by judge john newman of the second circuit who said that we realize that discovery in this context of these detainees, and they are suing the former attorney general and the head of the f.b.i., and this is a sensitive matter, and we think discovery should be very limited. it wasn't a katie bar the door, let's get any kind of discovery the playoffs are seeking. still that provided a vehicle for the majority to import the other case into this set of facts. >> you mentioned the environmental cases. there were several important environmental cases this term.

ted, will you take into that? >> yes. i will start with what john ended with, the standing point. there were five so-call environmental cases and the so-called environmental side lost all five. so i suppose it is going to be characterized as a big lows for the environmental interests and so forth, but most of these cases really had to do with other grounds for decision. one of which john mentioned, which was standing. one of them involved the extent to which people that were objecting to a forest service policy involving the cutting of trees could go ahead and bring this challenge, notwithstanding the fact that the case had been settled, and they were then going to challenge some of the process and procedures and policies of the forest service, notwithstanding the fanth that the -- fact that the case had been settled. justice scalia wrote a 5-4 decision saying there is no standing in this case.

john roberts wrote a law review article about standing. he joined the justice department in 1981 when rex lee -- the beginning of the reagan administration. then john roberts, now chief justice roberts was a special assistant to the attorney general. one of the things going on in the justice department then is judicial restraint. what kind of arguments can we make to the supreme court to advance our goals of encouraging more judicial restraint? and standing was a big thing with rex lee and the justice department, and there was john roberts as a part of that. then when he did become chief justice, one of the very first opinions he wrote on stepsively -- on extensively involved --

involved several things. as chief justice, he wrote a very powerful standing decision going down different bases for do all of them. i know we are short of time. one case was wales versus submarines. the ninth circuit issued a decision restricting the use of sonar by submarines because of damage to the whales. the next one was tree huggers verse loggers, and the loggers won. and the use of the best available technology to cool water that was being used for nuclear reactors and put back into the stream. that was best available technology versus cost-benefit analysis, and cost-benefit

analysis won. and then a case which involved a gold mine in alaska, and the justices that were against the permit which had been given to the gold mining company to put the tailings from the gold mining operation into a small lake were very concerned about the fact this was going to kill the fish. i argued the case. i didn't quite say this, but i was thinking of them as bait rather than fish, and they were just going to be killed temporarily. after this was done, there was going to be restoration of the wildlife. that was the small fish versus the gold miners, and the minuters won. really, those cases aside from the standing case had to do with deference to decisions that had been carefully made by the administration. in the case involving the water going from the nuclear reactor, the cost-benefit analysis was

something that the agency had carefully thought out and the best available technology could have been so good that you could not have put any water back into the stream, and justice scalia's opinion said no, no, no, there is some play for the( they had finally worked out their differences and come to

an afwreement where both agencies worked together, and in this case both agencies issued permits, and the court decided we are not going to substitute our judgment for what the agencies have done with respect to their allegation of responsibility under the clean water ack. >> thank you. let me move on now. john, what should we say about the first amendment this term? >> well, the first amendment this term, the really interesting case is still to be decided on monday. justice roberts' successful attempts to bring union anyonity made the other cases less exciting. in your hand out, the case about union regulation and the case about the monument in the park, the court really did not change the law substantially as evidence by unanimous results

and almost unanimous opinions in both cases. so i tholed i would focus on the most exciting case where i do expect there could be some substantial change in the law, and that is the citizens united case, which is the case about the -- very briefly because of time and i am sure the audience is knowledgeable about the facts. this is about the hillary film. this is a film that was shown that was, to put it mildly, not very favorable to secretary of state clinton. i think there was not a favorable word about her in the 90-minute film. the arningt was this under the campaign finance laws, an lex nearing communication forbidden within 60 days of an election. what is new about this is that

often campaign finances focused on commercials on tv. this is a more traditional medium, a film. and yet the f.e.c. tried to regulate this film because it was going to be given out 60 days before an election. this comes at a very controversial time for campaign finance law because there have been two decisions that point in different directions. the first on fine gold, was the mcconnell decision in which the court essentially upheld it against a challenge, saying that the government could ban election earing communications by corpses 60 days before an election. and then subsequently after justice alito replaces justice

o'connor, they succeed, and justice roberts writes for the court, that something won't be considered -- would be considered an election communication unless it can be interpreted any other way to attempt to get you to vote for or against a candidate. that sets the stage to this oral argument. the question is how is the court going to deal with this? i think there are three possible roots that come out of the oral argument. one is the simplest route that makes almost no law at all, saying this actually doesn't turn out to be that kind of communication you said the wisconsin for life law, that the constitution will protect something unless it is a direct or a functional equivalent of an attempt to get you to vote for or against someone 60 days before an election. i'm not sure how plausible that is given what the film -- as i said, it says not a nice word

for 90 minutes against mrs. clinton. secondly, i think the court might try to expand the as-applied challenge of wisconsin for life, and suggest that movies really have a different standard. as justice scalia said in oral argument, this is about willing listeners. they have to purchase the movie and willing speakers, and the constitution protects that as sack row sappingt sack row santh. the down side of that, we will see a lot more movies like the hillary movie around an election time. finally i think this case could be used as a vehicle for overturning the mcconnell decision.

when we talk about the personnel of the court, justice alito, it is important to understand, is different in important respects from justice o'connor. already he seems to be much less sympathetic to campaign finance restrictions than justice o'connor. that is the con text in which we might see a decision reversing that. another issue that came out of the the oral argument was i think many of the justices became very uncomfortable when they realized that the theory of the mcconnell case and the theory the government pushed would allow the government to prevent even books, let alone films, from coming out 60 days before an election if they were considered to be an election communication. and this seemed to be extremely troubling to the court. after all, what could be more core first amendment speech than a book about a candidate

right before an election? i think that up to date scores what i think is the oddity, threes in my view, of first amendment doctrine. the first amendment is being pushed in a variety of ways, and yet being narrowed around a core political speech around election time. i expect the court is going to allow films like hillary to flourish, and so we can look forward to a lot more of them in 2012. >> on that upbeat note, there is one more case we have to talk about it, and you certainly don't want to go away without our doing this. and that is caperton versus a.t. massey cole company. we are in west virginia. there are not many cases which are more familiar to readers of newspapers and people who watch

television. that has to be on our docket. >> many of you do know the background facts of this case, but let me summarize it briefly. there is a major dispute between two cole companies in west virginia -- coal companies in west virginia. one accuses the other of uses ma lirbles -- malicious aggressive tactics to drive the first company out of business. there is like a $50 million verdict against the aggressor coal company. the defeated aggressor coal company in that case says we are going to appeal, and the president of the company at the same time says i am going to participate in a big way in electing the next available justice to the west virginia supreme court. so that individual spends something like there are 3  million of his own money to replace in the election one of the justices on the supreme

court perceived by him to be least favorable to his potential case, wit someone who he perceived to be more favorable. the coal company that was the winner of the court case below asked that the justice recuse himself. he declined to recuse himself. the case goes to the united states supreme court based upon a claimhat there is a violation of the due process cause clause. i don't know what is happening to my voice because every litigant is entitled to a fair jurist and a fair tribunal. and the supreme court decided, to make a long story short, that there wasn't, by a 5-4 vote -- this is another justice kennedy outcome. i think he had six opinions, five of which were 5- 4 and one

of which was 6-3. he probably has one of those monday. but the supreme court says there is a floor under which an individual, where the circumstances suggest that an objective person might think that that jurist could have a hard time holding the balance and might be biased should under the constitution's due process clause be recused in the case. the chief justice wrote a strong dissent. the chief justice's opinion lists 40 different questions that might come up. what about if you finance the losing candate, and is the winner going to be against you? what about trade associations putting money into elections and so forth? and all of those are legitimate questions, and they will be

ventilated in the years to come. what was concerning the court, obviously the majority of the court, and retired justice o'connor had spoken about this very case quite a bit, was the appearance of justice for sale. and that lots of money going to state judicial races were making people believe that they had to participate in some way in financing judicial elections or they wouldn't get a fair hearing when their case came before the court. i argued this case, and i knew the court was going to be concerned about opening the flood gates, and where we were going from here and what kind of bias would we be demonstrating, or being friends with a justice, or a former clerk of the justice. so i focused a lot on the justice for sale concern that i think underlay what the

justices were concerned about, and i actually went back to the magna carta and i found a provision that said something to the same effect, that justice will not be for sale, justice will not be bought. we found something in both the magna carta and picked up by blackistone. i thought maybe that will calm down the conservatives that are worried about constitutionalizing this thing. it didn't work. four of them voted against us, but it was enough to pick up the fifth vote to support the final outcome. one of the justice during the oral argument, justice stevens said isn't the due process clause a concern for the judiciary? my opponent said no, it is only the right of an individual, it is not a right of the judiciary to be perceived in the right

light. that bothered justice stephens and justice souter as well, that we in the united states supreme court at the end of the day have got to be mindful of the appearance of justice as well as actual justice itself. the facts of this case were so bad that having taken the case, linda has made this point, once they took the case, it was going to be very hard to say oh, well, no problem. >> as we move to our conclusion, it would not be appropriate to end without at least a comment or two on the retiring justice, justice souter, who leaves the court. i had not met him before he was appointed to the bench, but i remember covering his confirmation hearings for the mcneill-lerher news hour.

i have to say that the justice he has been on the bench seems to me to be fairly congruent with the figure i saw before the committee. i was not among those though was terribly surprised, but i not have pricked he would be as liberal a justice as he has turned out to be. he was called the steth -- stellth candidate. there is no justice who appears lesson the social scene than justice souter. he will be very happy to go back to the farm in new hampshire. he will be happy to see washington in the rear view mirror as he heads to new hampshire. what his legacy will be i guess historians will say. there are no great grand doctrines that have been produced. i will tell one story